Tesco has been in the news recently as solicitors for some of their female employees have announced that they intend to pursue claims for equal pay against the supermarket. This is not the first of the “big four” to be put under the spotlight with claims against both Sainsbury’s and Asda working their way through the Employment Tribunals over the last three years.
The most recent legal action against Tesco looks set to follow in the footsteps of previous equal pay litigation in the supermarket sector as the predominantly female store workers attempt to establish they are paid less than their mainly male colleagues based in distribution centres.
Despite this latest spate of claims by supermarket workers, equal pay legislation has been around for almost 50 years and is intended to protect workers (male and female) across all industries who discover they are receiving less favourable terms than colleagues of the opposite sex. We have set out below some of the elements to an equal pay claim to help you recognise the signs.
Equal Pay Information For Workers
Equal work
The basic principle of equal pay legislation is that workers doing equal work should be paid the same regardless of their gender. There are 3 ways in which work can be considered to be equal:
- Like work- This is perhaps the most straightforward category where workers doing the same or broadly similar jobs should have the same terms. In the supermarket context this would mean that female and male checkout assistants should be paid the same where the only difference between them is their gender.
- Work rated as equivalent- Where a job evaluation scheme has been carried out and implemented by an employer, those individuals whose roles have been “rated as equivalent” to should receive equal terms. Whilst job evaluation schemes tend to be common in the public sector, as there is no obligation on employers to put these in place, there will be relatively few workers who will have had their role evaluated in this way.
- Work of equal value- Where workers do not do like work to their chosen comparators and there is no job evaluation scheme in place, this final category will apply where workers can show that their roles are equal in terms of the demands made on them by reference to factors such as effort, skill and decision-making. Experts will often be appointed to provide the Tribunal with an opinion as to the relative value of the roles in question.
In the claim against Tesco, the female workers are hoping to show that they fall into the final category and that the work they do is of equal value to their higher paid male colleagues. It is thought those working in Tesco’s warehouses can earn in excess of £11 per hour whereas those based in stores are paid around £8 per hour.
Comparator
Another requirement for a worker to be successful in an equal pay claim is that they identify a comparator of the opposite sex. This comparator must:
- Be of the opposite gender to the person bringing the claim;
- Be either a current or previous member of staff of the employer including the workers predecessor;
- Be (or have been) working for the same employer, either at the same establishment or with common terms of employment; and
- Be an actual person (it is not possible to rely on a hypothetical comparator).
An employer’s defence
An employer will have a defence to a claim for equal pay where it is able to show that the reason for the difference in pay is some other material factor that is not discriminatory. Depending on the circumstances, the following could amount to a material factor and provide an employer with a defence:
- Past performance
- Length of service
- Geographical reasons
- Different collectively-agreed pay scales for the jobs
- Market forces and skills shortages
- Historical reasons
Compensation in successful equal pay claims
Where a worker is successful in a claim for equal pay they will be entitled to be awarded compensation which will usually be arrears of what they should have earned, had they been paid equally. For the purposes of calculating these arrears the Tribunal can look back for up to 6 years.
Where there is a large workforce this can result in a significant cost to an employer especially as a successful claim by one worker can result in others jumping on the bandwagon. In the Tesco case, for example, solicitors for the female workers estimate that in excess of 200,000 workers could have been underpaid and, if successful, this could amount to total repayments of £4billion having to be made.
Does any of this sound familiar?
For further information, please contact us on 0800 024 1976 or via our online form and a member of our Employment Law team will be happy to help.